FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIM & ZONG (No 2) | [2019] FCCA 3249 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – where applicant applied for a stay of interim orders – where applicant did not establish a proper basis for a stay – consideration of best interests of child – application for an order granting stay dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.102NA |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| Applicant: | MR LIM |
| Respondent: | MS ZONG |
| File Number: | BRC 8160 of 2014 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Julie Harrington Solicitor |
ORDERS
The application filed by the applicant on 28 October 2019 seeking a stay of orders made on 20 September 2019 (as amended) is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lim & Zong (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Brisbane |
BRC 8160 of 2014
| MR LIM |
Applicant
And
| MS ZONG |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 September 2019 the applicant filed a Notice of Appeal to set aside interlocutory parenting orders made by me on 20 September 2019[1] suspending both time and communication with the child until further order and requiring the applicant to attend upon a psychologist. Further orders were made seeking assistance from the Independent Children’s Lawyer regarding an allegation that child exploitation material had been downloaded and traced to the applicant’s residential address by police.
[1] Amended on 30 October 2019 under Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
This matter was initially listed for final hearing on 2 September 2019. Following the release of the Family Report the Independent Children’s Lawyer sought that the matter be listed on an urgent basis. The respondent mother in her affidavits raised issues that the applicant father had engaged in coercive and controlling behaviour towards her in the presence of the child over a significant period of time. The Family Consultant in her report dated 26 August 2019 recommended that the father spend no time and not communicate with the child. The Independent Children’s Lawyer was concerned that both parties were unrepresented. She sought an order for the applicant’s time to be supervised raising concerns about the risk he presented to the child.
The matter was listed before me for mention on 30 August 2019. Given the allegations of family violence and the fact that section 102NA of the Family Law Act 1975 was due to commence on 10 September 2019 the final hearing of the matter was adjourned to allow both parties to make application through the…
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- Lim & Zong (No 2) [2019] FCCA 3249
- Case
- [2019] FCCA 3249
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicant had established a proper basis for granting a stay of the interim orders. In determining this, the Court was required to consider the paramount consideration of the best interests of the child.
Judge Tonkin reasoned that the applicant had failed to demonstrate sufficient grounds to warrant a stay of the existing orders. The Court applied the principles governing applications for stays in family law proceedings, which necessitate a compelling case to be made, particularly when the welfare of a child is involved. Having found no such compelling case, the application was dismissed.
The Court ordered that the application filed by the applicant on 28 October 2019, seeking a stay of the orders made on 20 September 2019 (as amended), be dismissed.
Orders
Orders of the court
1.
The application filed by the applicant on 28 October 2019 seeking a stay of orders made on 20 September 2019 (as amended) is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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